Excerpt:.....de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - ' 8. in our opinion, it is clear from the above decision that if the decree-holder is satisfied with the alleged delivery of possession, whether physical or symbolical, he cannot on a subsequent date ask for acutal possession by filing a second execution petition......determination a question as to the competency of the executing court to direct a fresh delivery of actual possession of immovable property there having been earlier a symbolical one.2. the short facts are the following: respondent no. 1 obtained a decree for delivery of possession of 0.523 acre of land out of plot no. 1108 which comprises an area of 0.525 acre. he levied execution of the decree and applied for delivery of actual possession after demarcation and identification of the land by a survey knowing commissioner. the executing court issued a writ of delivery of possession under order 21, rule 35, c. p. c. and appointed a commissioner to demarcate the property at the time ofdelivery of possession. the process server entrusted with the writ reported that he had delivered physical.....

Judgment:

P.K. Mohanti, J.

1. This appeal is directed against the decision of a learned single Judge of this Court confirming an order for delivery of possession of immovable property under Order 21 Rule 35, C. P. C. passed by the learned Subordinate Judge of Bhubaneswar. The appeal poses for determination a question as to the competency of the executing Court to direct a fresh delivery of actual possession of immovable property there having been earlier a symbolical one.

2. The short facts are the following: Respondent No. 1 obtained a decree for delivery of possession of 0.523 acre of land out of plot No. 1108 which comprises an area of 0.525 acre. He levied execution of the decree and applied for delivery of actual possession after demarcation and identification of the land by a survey knowing commissioner. The executing Court issued a writ of delivery of possession under Order 21, Rule 35, C. P. C. and appointed a commissioner to demarcate the property at the time ofdelivery of possession. The process server entrusted with the writ reported that he had delivered physical possession of the property to the decree-holder after evicting the judgment-debtors therefrom. The commissioner appointed by the Court also reported that he had demarcated the land at the time of delivery of possession. The decree-holder also made an endorsement on the back of the writ that he had got actual physical possession. Thereafter the judgment-debtors 5 to 7, 9 and 14 filed a petition on 10-11-1972 in the executing Court alleging that delivery of possession was only a paper delivery and not actual physical delivery and that they were still continuing in possession of the property. According to them, the process server and the commissioner had submitted false returns about actual delivery of 'possession. The executing Court held an enquiry into the allegations and found by its order dated 27-1-1973, that there was no demarcation of the property at the time of delivery of possession and that the possession which had been delivered to the decree-holder was only symbolical in nature. On 26-2-1973 the decree-holder filed a petition for fresh delivery of possession of 0.523 acre out of 0.535 acre and the judgment-debtors 5 to 7, 9 and 14 filed an objection under Section 47 C. P. C. Their contention was that symbolical delivery of possession having been given by the Court to the decree-holder, there could be no further jurisdiction (sic) having been overruled by the executing Court, the judgment-debtors came up in appeal to this Court.

3. The learned single Judge who heard the appeal came to hold that the decree-holder being entitled to actual physical possession, the symbolical possession was a nullity and accordingly maintained the order of the executing court for fresh delivery of possession. It was contended before the learned single Judge that the decree was incapable of execution as it does not specify the particular portion of plot No. 1108 which the decree-holder claimed in the suit. The learned Judge repelled the contention with the following observations :

'......But the court below has directedthe decree-holder to take steps for appointment of a commissioner for demarcation of the property according to the decree. This shows that the point now raised by the appellants has not been disposed of by the Court below, because the occasion for such disposal has not arisen as yet. So, I do not express any opinion on the point. It is open to the appellants to agitate the point in the Court below at proper time.''

Aggrieved by this decision, the judgment-debtors have preferred this appeal. The names of appellant No. 1 Rama Subudhi and appellant No. 5 Raghunath Sadangi have been deleted as per order No. 7 dated 22-4-1976.

4. The points that arise for consideration in this appeal are : (1) whether the executing Court has jurisdiction to direct fresh delivery of possession, there having been earlier a symbolical delivery of possession, and, (2) whether actual physical delivery of possession of a portion of the plot can be given by the executing Court when it has not been specified in the decree.

5. The Civil Procedure Code contains various provisions as to when actual, joint or symbolical possession can be given. Possession referred to in Sub-rules (1) and (2) of Order 21, Rule 35 is khas or actual possession, while that referred to in Sub-rule (2) and Rule 36 is formal or symbolical possession. If the immovable property of which possession is directed by the decree to be delivered to the decree-holder is in possession of the judgment-debtor, actual possession must be delivered to the decree-holder under Sub-rule (1) of Rule 35. Where it is in possession of a tenant or other person entitled to occupy the same, only symbolical possession can be delivered and that is to be done under Rule 36. Symbolical possession may in such cases operate as actual possession against the judgment debtor. In the present case, the decree-holder did not apply for symbolical possession under Order 21, Rule 35. The writ of delivery of possession issued by the Court says that the decree-holder must be put in possession and the process-server was authorised to remove any person bound by the decree who refused to vacate. The executing Court found that the requirements of Sub-rule (1) of Rule 35 of Order 21 were not complied with and that a false return was made as if they were complied with. On the finding of the executing Court that the statutory requirements were not complied with, the possession obtained by the decree-holder may be correctly described as paper possession only. The characterisation of possession as symbolical is hardly justified and runs counter to the provisions of Order 21, Rule 35 C. P. C. The so-called paper possession or possession on paper is no delivery of possession, actual, formal or symbolical.

6. It is submitted on behalf of the appellants that, once the decree has been executed by delivery of symbolical possession, the executing Court cannot once more execute the decree which has been already executed in full. We regret our inability to accede to this contention. If possession had been delivered legally and actually and subsequent to that possession, the judgment-debtor has taken possession of the property, no second execution will lie after the satisfaction of the decree. In such cases, a suit alone will lie. In the present case, the judgment-debtors themselves took the stand that the alleged delivery of possession by way of execution was only a paper delivery and not actual physical delivery. The Court after enquiry found that actual possession had not been delivered in accordance with the provisions of Order 21, Rule 35 C. P. C. In such a case, it cannot, therefore, be said that the decree has been executed in full until the Court satisfies itself that there has been actual physical delivery of possession as claimed by the decree-holder. Once it is found that there is no actual possession given in accordance with the provisions of Order 21, Rule 35 C. P. C. there cannot be any finality in the execution proceedings and as such a subsequent application is maintainable for actual delivery of the property.

'It is true that the Nazir's return showed that defendant No. 4 had not been bodily removed. But the same return also shows that it had not been so removed because of certain arrangement arrived at between it and the decree-holders and as the decree-holders had not required the removal of defendant No. 4 from the premises. Nowunder Order 21, Rule 35 a person in possession and bound by the decree has to be removed only if necessary, that is to say, if necessary to give the decree-holder the possession he is entitled to and asked for. It would not be necessary to remove the person in possession if the decree-holder does not want such removal. It is open to the decree-holder to accept delivery of possession under that rule without actual removal of the person in possession. If he does that, then he cannot later say that he has not been given that possession to which he was entitled under the law. This is what happened in this case. The decree-holders in the present case, of their own accepted delivery of possession with defendant No. 4 remaining on the premises with their permission. They granted a receipt acknowledging full delivery of possession. They permitted the execution case to be dismissed on September 8, 1949, on the basis that full possession had been delivered to them by defendant No. 4. The fact that they put their guards on the premises as mentioned in the Nazir's return would also show that they had obtained full possession. It was open to the decree-holders to accept such possession. Having once done so, they are bound to the position that the decree has been fully executed, from which it follows, that it cannot be executed any more.'

8. In our opinion, it is clear from the above decision that if the decree-holder is satisfied with the alleged delivery of possession, whether physical or symbolical, he cannot on a subsequent date ask for acutal possession by filing a second execution petition. A prayer for fresh delivery of possession can be entertained only in cases where there was no legal, complete and effective delivery of possession on the earlier oc-casion. Similar view has been taken in AIR 1966 SC 470 (M. V. S. Manikayala Rao v. M. Narasimhaswami) AIR 1964 Mad 53 (FB) (Ramaganessan Pillai v. Rajah Ayyar) AIR 1955 Nag 79 (Radhalal v. Chabilchand) and AIR 1957 Punj 17 (Jaimal Singh Dasaundha Singh v. Rakha Singh), In the case of Ghanashyam Das Mour Agarwalla v. Fatik Chandra Das: AIR 1957 Assam 123 it has been held that if the fact was that actual delivery of possession was not obtained by the decree-holder in the previous executioncase there was no justification for holding that the decree-holder be deprived of his right to come before the executing Court and pray for a fresh delivery of possession when there was no other bar to his right for executing the decree. In view of the principles laid down in the aforesaid cases, we agree with the learned single Judge that since there was no legal, complete or effective delivery of possession on the earlier occasion it is competent for the decree-holder to apply again for physical delivery of possession. We hold that the first point urged on behalf of the appellants-judgment-debtors is devoid of any force.

9. The difficulty of the decree-holder however, is on the second point. The description of the land as given in the plaint, the decree and the execution petition is quite vague and uncertain. The land is described as 'Plot No. 1108 A. 0.523'. Admittedly, Plot No. 1108 'comprises an area of 0.535 acre. The decree directs delivery of possession of a portion of the land, that is, 0.523 acre. The remaining portion of 0.012 acre was not the subject matter of the suit. The portion measuring 0.523 acre has not been specified by boundaries or a sketch map. In the absence of sufficient particulars, it is difficult to fix up its identity. Order 7, Rule 3 C.P.C. provides that where the subject matter of the suit is immovable property the plaint shall contain a description of the property sufficient to identify it and in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or particulars. Order 20, Rule 9, C.P.C. also provides that where the subject-matter of the suit is immovable property, the decree shall contain a description of such property sufficient to identify the same. In the present case, the decree-holder claims delivery of possession in respect of a portion of the plot. There is however, nothing to show from which side of the plot he is entitled to take possession. It is difficult to understand why the executing court appointed a commissioner for demarcation of the land when it has not been specified in the decree. It is not open to the excuting court to divide the plot and deliver possession of any specific portion. It would be impossible todemarcate and deliver possession of any: specific portion unless its identity is known. Mr. P. C. Misra who appeared for the respondent-decree-holder in this court when confronted with the situation could not satisfactorily meet the point.

10. In view of our above finding, we allow the appeal and set aside the order for fresh delivery of possession in favour of the decree-holder. We make no order as to costs.